Three challenges have recently been launched against Wisconsin’s congressional plan, all invoking state constitutional — not federal — law. These suits pose interesting questions about what (if anything) is legally problematic about this plan. One suit alleges malapportionment because the plan’s districts vary in population by up to two persons, not the arithmetical minimum of one, and this population inequality is unnecessary to achieve any state interest. Another suit alleges both a violation of the separation of powers (because, in adopting the plan, the state supreme court adopted a “least change” criterion instead of independently exercising its remedial authority) and partisan gerrymandering. Arguably the strongest evidence of partisan gerrymandering cited by the suit is that, according to several measures, the plan has been among the most biased in the country in the current cycle.

Lastly, a third suit (for which I’m one of the attorneys) alleges anti-competitive (not partisan) gerrymandering. This suit points out that Wisconsin’s 2011 plan (which the current plan mirrors) aimed to protect incumbents from competition. The suit also describes how uncompetitive races have been under the current plan: In the 2022 and 2024 elections, the median margin of victory was nearly thirty points, and every district but one was won by at least ten points. The suit further notes that alternative maps created without considering election results (but satisfying all federal and state criteria) are almost never as uncompetitive as the current plan.

The Wisconsin Supreme Court will now consider which, if any, of these suits to hear. If the court decides to get involved, the plaintiffs have asked for a decision in time to redraw the map before the 2026 election.

The Wisconsin Law Review just published this article by James Piltch. Here’s the abstract:

Academics, policymakers, and judges alike almost universally agree that local subdivision preservation and compactness serve essential roles in redistricting. They often argue—and other times accept as given—that these criteria simultaneously protect against partisan gerrymanders and ensure nonpartisan communities receive the representation they deserve.

This support is a normative and practical puzzle. It is well established both that local governments and their subdividing lines often create segregation and inequality and that compact communities reflect the same issues. Indeed, existing empirical research also finds that these criteria undermine partisan fairness and competitiveness—the stated goals of election law reform.

This Article shows that these flaws, when taken seriously, undermine the normative and political neutrality of these redistricting criteria. Building on this observation, it makes the novel argument that redistricting should abandon these criteria because they honor and empower exclusionary communities while reducing the fairness and competitiveness of elections. This Article argues for replacing subdivision preservation and compactness as the primary redistricting criteria with a partisan fairness metric, as well as a geographically and conceptually expanded idea of communities of interest. Ultimately, this Article calls for a new conversation about which partisan and nonpartisan communities deserve representation in redistricting and how election law reformers and map-drawers can take new approaches to delivering that representation.

Military and overseas voters whose votes are set to be thrown out in the long-running dispute over North Carolina’s 2024 state supreme court race have filed a new lawsuit alleging a series of constitutional violations. Harvard Law School’s Election Law Clinic is part of the team of attorneys representing these voters. Here are some excerpts from the complaint:

This case seeks to avert an unprecedented effort to change the results of a statewide election by discarding up to 5,509 votes from military and overseas voters five months after their votes were cast, confirmed, and counted. Those voters, drawn from a selectively targeted subset of four counties, did everything election officials told them to do to successfully vote in 2024. But their vote in one race is in jeopardy because the losing candidate has completed his campaign to force state election officials to retroactively invalidate their votes. The need for federal court intervention to prevent such a grave subversion of the democratic process is urgent. . . .

Now, nearly five months after the votes were cast and counted (and twice recounted), the state of North Carolina has acquiesced in an unprecedented effort to reverse this outcome. At Griffin’s behest, the North Carolina Court of Appeals has ordered the North Carolina State Board of Elections (“NCSBE”) to declare up to 5,509 votes cast by eligible, qualified voters as presumptively invalid.

These voters all registered to vote, cast their ballots, and had those ballots counted under the settled—and widely communicated—rules in place prior to and at the time of the 2024 elections. Specifically, they are overseas civilian and military voters who voted in accordance with the provisions of Article 21A, Chapter 163 of the North Carolina General Statutes, the Uniform Military and Overseas Voters Act (“UMOVA”). . . .

The U.S. Constitution prohibits North Carolina from retroactively applying novel election rules articulated months after the 2024 election to arbitrarily disenfranchise eligible, qualified voters like Plaintiffs. Voters relied on election officials to maintain and enforce lawful election rules, and they relied on election officials’ assurances that they had fulfilled all applicable requirements to register and to vote in the Seat Six election. Articulating new rules months after the votes were counted, and then retroactively applying those rules to overturn the democratic choice of the voters, deprives Plaintiffs of their fundamental rights to vote and to due process, which “protects the right of qualified citizens to vote and to have their votes counted as cast.” Hendon v. N. Carolina State Bd. of Elections, 710 F.2d 177, 180 (4th Cir. 1983) (emphasis added).

Moreover, the NCSBE’s selective application of new vote counting rules to Plaintiffs and other similarly situated voters violates the U.S. Constitution’s Equal Protection Clause. The NCSBE has presumptively invalidated votes cast by Plaintiffs and other overseas and military voters who voted absentee in up to four Democratic-voting counties—Buncombe, Guilford, Durham, and Forsyth—but not votes cast by similarly situated voters who voted absentee in North Carolina’s other 96 counties. This “arbitrary and disparate treatment in the valuation of one person’s vote in relation to another’s” cannot stand. Wise v. Circosta, 978 F.3d 93, 100 (4th Cir. 2020) (emphasis added).

This is a guest post by a team of students in Harvard Law School’s Election Law Clinic:

Election administration is a marriage of rules, laws, and norms that together create a system to elect a candidate. When reviewing an election system, one must do so by looking at each part in the context of their sum. The Trump Executive Order titled “Preserving and Protecting the Integrity of American Elections” is a power grab that presents a boldface restriction on voting rights, and it risks, among other things, disenfranchising qualified voters. To support his claims, President Trump cherry-picked certain election administration practices in six different countries: India, Brazil, Germany, Canada, Denmark, and Sweden, which this Administration believes are more secure than the United States.   

Our aim is not to evaluate the comparative practices that President Trump’s EO highlights, rather, we give the election administration of these countries a fair assessment. When viewed in their totality, all six of the countries highlighted are successfully implementing pro-voting practices that increase access to the ballot. Notably, some of the countries showcased by the order conduct practices directly in opposition to other practices the EO highlights. Take, for example, India and Brazil. Both are praised by the EO for their use of biometric data for citizenship verification but also use almost entirely electronic voting methods, a practice Mr. Trump discredits a few lines later in the EO. Indeed, the order calls for voting methods that produce a voter-verifiable paper record.  

The EO calls out the practice of “tying voter identification to a biometric database” in India and Brazil rather than “self-attestation for citizenship,” which is used on the United States. This is one feature of the election systems in India and Brazil, two of the world’s largest democracies. India’s elections, the largest in the world, are overseen by a powerful independent election commission. In the last few weeks, President Trump has indicated his desire for the opposite – control over the Federal Election Commission. He has exercised that control by firing one member of the Commission and requiring the Commission to run all new policies, rulings, and regulations by him. As indicated, this EO states the President’s aspiration for paper ballot elections. Yet, India’s elections are conducted nearly entirely electronically on the country’s nearly two million voting machines. India has taken additional measures to ensure access to the ballot – including a law requiring that citizens need not travel more than 2km to vote. To meet these demands, civil servants from around the country leave their day jobs to conduct the election in every corner of the country, even if it means hiking into rural communities. Similarly, in Brazil, elections are conducted entirely electronically. Across the country the same numeric keypad system with a screen is used to vote.  

President Trump’s EO praises Canada and Germany for requiring “paper ballots, counted in public by local officials…” The EO says that the use of paper ballots “reduces the number of disputes as compared to the American patchwork of voting methods.” While Canada does use paper ballots in federal elections, ballot counting occurs behind the locked doors of polling stations, though candidates, their representatives, or other designated observers may be permitted to watch the counts. Still, electronic voting is not completely absent from elections in Canada, since some municipal, territorial, and provincial elections can involve casting a digital ballot. Germany does not currently use electronic in general elections, but recently, Germany has begun to experiment with online voting for certain elections. Furthermore, both Germany and Canada permit mail-in voting, a practice President Trump has sometimes criticized, but studies have found may increase turnout among eligible voters. In Germany, eligible absentee voters can scan a QR code on their smartphones to receive an absentee ballot in the mail.  

On the subject of mail-in voting, President Trump’s EO also commends Denmark and Sweden for limiting the practice to “those unable to vote in person” and “not count[ing] late-arriving votes regardless of the date of postmark,” in contrast to American elections in which officials accept “ballots without postmarks or those received well after Election Day.” In Denmark, advance voting is limited to those unable to appear at the polls during voting hours, advance votes require a special ballot with a separate envelope and cover letter, and any such votes received after voting starts “shall not be considered.” While true that Sweden and Demark do not accept ballots after the election, like the majority of states in the U.S., the ID requirements in these countries may be less stringent than what President Trump has called for. Despite the emphasis placed on documentary proof of citizenship in the EO, presenting identification is not a per se requirement at the polls in Denmark. Sweden also limits mail-in voting to cases in which the voter is abroad, and postal votes must arrive in time for the vote count. Yet presenting identification is not a per se requirement at the polls in Sweden, either. In fact, if there is a question about a voter’s identity, another voter can vouch for him. Furthermore, Swedish elections reserve an option for voting by courier, and some municipal and regional assembly elections even permit those without Swedish citizenship to cast votes. 

One lesson is clear: if Mr. Trump wants to borrow election practices from other countries, he should look at the full picture.

HLS’s Election Law Clinic filed this amicus brief yesterday on behalf of FEC Commissioner Ellen Weintraub (whom President Trump purported to fire without cause last month) in DNC v. Trump, the case challenging the application of Executive Order 14215 to the FEC. The brief focuses on the importance of the FEC’s independence. Here are a few excerpts from the introduction:

If there is any agency that partisan elected officials—including the President—must not be allowed to bend to their will, it is the body that regulates them when they run for office: the Federal Election Commission . . . .

To perform this role properly, the FEC must be—and, since its inception, has been— independent and bipartisan. The FEC’s independence is crucial to its ability to implement campaign finance laws fairly, neutrally, and without seeking to benefit or handicap any individual or party. The FEC’s bipartisanship is no less important, ensuring that neither major party can dominate the body and that both parties’ views are heard on matters vital to their operations. . . .

Congress unquestionably wanted the FEC to be independent and bipartisan when it created the agency. According to the Senate report that accompanied the 1974 amendments to the Federal Election Campaign Act (“FECA”), to “prevent[] discriminatory [policies] in favor of any candidate or party,” federal campaign finance “would be overseen by the Independent Elections Commission, which itself is subject to judicial review of alleged discrimination.” S. Rep. No. 93-689, at 10 (1974). Congress had the same aim when it amended the FECA in 1976 to respond to the Supreme Court’s decision in Buckley v. Valeo, 424 U.S. 1 (1976). Per the relevant House report, one of the “basic principles” underpinning these amendments was that the FEC would possess “independence” so that it “does not provide room for partisan misuse.” H.R. Rep. No. 94-917, at 2–3 (1976). . . .

[A]s illustrated by Commissioner Weintraub’s own experience, Executive Order 14215 is only part of a broader attack on the FEC’s independence and bipartisanship. Earlier this year, President Trump fired Commissioner Weintraub from her position without cause. This removal was unprecedented, with no Commissioner having previously been fired for any reason. The removal subverted the FEC’s independence and bipartisanship. It targeted a specific Democratic Commissioner. The removal was unlawful. . . .

[E]ffective election administrators around the world are characterized by their separation from the executive. In fact, this separation (or its absence) is the key criterion used to categorize election administrators, who can be independent, controlled by the executive, or mixed. . . . In this typology, most Western democracies rely on independent election administrators. And for good reason: Elections are run impartially—and, equally critically, in a manner perceived to be impartial—only if election administrators (including those implementing campaign finance laws) are independent of the executive. Consequently, Executive Order 14215 diverges from the global consensus on the proper administration of elections. It compromises the independence of the one body in the complex American electoral system that, until now, has been insulated from the executive.

John Martin has posted “Regulating Foreign Political Advocacy,” forthcoming in the North Carolina Law Review, on SSRN. Here’s the abstract:

Foreign nationals can presently spend unlimited sums of money on political communications in the United States, including donations to issue-advocacy groups, all while remaining anonymous. This situation is not a product of legislative inaction. Rather, it stems from a 2011 federal court decision that narrowly construed a federal law banning foreign-funded campaign finance. Foreign nationals—including foreign governments—thus remain free to spend billions of dollars to influence our elections through political advocacy so long as they avoid express support for or opposition against electoral candidates. This reality raises many legitimate concerns about self-governance, corruption, and national security, and has given rise to calls for further regulation. Yet, in our age of systematic judicial deregulation of campaign finance law, we cannot presume any law is safe from challenge.

This Article accordingly examines whether legislatures may constitutionally restrict this practice of “foreign political advocacy,” and if so, to what degree. To do this, the Article first identifies theoretical and doctrinal support for a First Amendment right of Americans to receive foreign speech, and asserts that restrictions on foreign political advocacy would burden this right. At the same time, it recognizes a compelling governmental interest in preserving American democratic self-government that likely extends to regulations on foreign political advocacy.

Invoking such a compelling interest, however, itself raises questions about whether foreign political advocacy is wholly bad for self-government. On the one hand, excessive foreign influence over our political discourse may partially usurp control over governance from the American people. Yet, hearing foreign perspectives on our politics can also serve an epistemic function for American democracy by better exposing our electorate to the state of the world, in turn leading to more well-informed decision-making at the polls.

The Article works through these considerations, in part employing an original survey designed to assess to what extent voting-age Americans value information received via foreign political advocacy. Survey results were telling, indicating that many Americans may indeed incorporate foreign political advocacy into their voting decisions. The Article therefore concludes that while legislators may restrict foreign political advocacy, they should refrain from fully prohibiting the practice. Instead, more nuanced regulations are needed that define legitimate participation, set dollar limits, require robust disclosure, and impose effective enforcement mechanisms. 

In the eyes of many, Shelby County is one of the nadirs of the Roberts Court: an ignominious decision that tore out the heart of the Voting Rights Act. But that’s not Justice Kavanaugh’s view. As he suggested in his concurrence in Milligan—and repeated over and over in Monday’s oral argument in Callais—he wants to rerun the Shelby County playbook, only this time to nullify Section 2 of the VRA, not Section 5. Is there “a durational limit on the authority of Section 2,” he asked Louisiana’s lawyer? “[R]ace-based remedial action must have a logical end point,” he told the appellants’ attorney. “The authority of a state to engage in race-based redistricting must have an end point,” he reiterated to the appellees’ advocate.

In light of Justice Kavanaugh’s preoccupation with this issue, it’s worth elaborating why Shelby County’s reasoning about the obsolescence of Section 5—even if that logic were correct—is inapplicable to Section 2. First, and most importantly, Section 2 doesn’t refer to old election results and defunct electoral practices. According to the majority in Shelby County, the fatal flaw of the VRA’s coverage formula was that it was “based on decades-old data and eradicated practices.” Section 2 simply doesn’t share this supposed flaw. Nothing in a Section 2 case hinges on “literacy tests and low voter registration and turnout in the 1960s and early 1970s.” Nothing in a Section 2 case hinges on any particular data or practices from the distant past.

Second, the Gingles framework for Section 2 vote dilution claims already includes “durational limit[s]” and “logical end point[s]”—exactly what Justice Kavanaugh says he wants. To satisfy the first Gingles prong, a minority population must be “geographically compact.” This requirement isn’t satisfied in “substantially integrated” areas, where minority members are interspersed with other residents. Critically, more parts of the country are becoming residentially integrated. As I’ve explored in prior work, residential segregation has been consistently declining for roughly half a century. This trend has already made it impossible to satisfy the first Gingles prong in some places. Assuming the trend continues, it will further curb the reach of Section 2.

Similarly, the second and third Gingles prongs both relate to racial polarization in voting. And racially polarized voting both fell sharply in the 2024 election and was already low in many areas, especially in the Northeast and West. So these elements, too, are growing harder for Section 2 plaintiffs to establish in many cases. If 2024 is the new norm, Latino voters, in particular—who split nearly down the middle between Trump and Harris—will be unable to prove racially polarized voting in large swaths of the country.

Third, in Shelby County, the Court could plausibly argue that “things have changed dramatically” since 1965. But Section 2 took its current form (including the effects test that the Gingles framework operationalized) in 1982, not 1965. And relative to the baseline of 1982, the present doesn’t look all that different. With the exception of 2024 (and, to a lesser extent, 2020), racially polarized voting has been roughly constant since 1982. As a recent Brennan Center report shows, the racial gap in turnout between minority voters and white voters has grown over the last two decades. Racial vote dilution remains common across the country thanks to gerrymandered districts and at-large electoral systems. And racial vote suppression is a much worse problem today than in the 1980s, a decade when few states intentionally tried to limit minority turnout.

Finally, unlike Section 5, Section 2 is a fairly typical antidiscrimination provision. It doesn’t apply to only a subset of states, and it doesn’t rely on the extraordinary remedy of preclearance. As the majority in Shelby County acknowledged, Section 2 is simply a “permanent, nationwide ban on racial discrimination in voting,” which the Court’s decision “in no way affects.” If Section 2 is actually vulnerable to the same kind of attack as Section 5, then so should be myriad other antidiscrimination statutes, including Title VII, the Fair Housing Act, the Equal Credit Opportunity Act, and the Equal Educational Opportunities Act. After all, these laws were also passed decades ago—notably, before the 1982 amendments to Section 2—to combat other aspects of the same evil of racial discrimination. The logic of Justice Kavanaugh’s challenge to Section 2, in other words, is impossible to cabin to that provision alone. Which is all the more reason to reject that challenge.

This Harvard Law Review recently published this case comment on the Fifth Circuit’s en banc decision in Petteway v. Galveston County, which held that Section 2 of the VRA doesn’t authorize claims by coalitions of minority voters.

The Fifth Circuit’s erroneously narrow reading of Section 2 contravenes the statute’s broad language and expansive remedial intent. This error will diminish the protection that the Act was intended to provide in the context of our heterogeneous and diversifying electorate. . . .

 The Supreme Court has considered and rejected the structure of the majority’s argument — that is, if coalition claims were permissible, Congress would have expressly written them into the law — as an illegitimate interpretative strategy for analyzing the VRA.⁸⁰ By demanding express authorization of coalition districts, the Fifth Circuit disregarded the capacious legislative purpose undergirding the VRA⁸¹ and ignored the “super-strong presumption” of statutory stare decisis,⁸² which would have compelled an alternative result. . . .

The Fifth Circuit’s rejection of coalition claims risks undermining cross-racial solidarity and rewarding residential segregation. The United States is becoming more diverse and less residentially segregated for certain minority groups — two positive developments.⁸⁸ But the Fifth Circuit’s ruling risks making residential heterogeneity an impediment to Section 2 relief.⁸⁹ As a community diversifies, it becomes less likely that households of any single race will be sufficiently concentrated to meet the Gingles compactness threshold that plaintiffs must satisfy to bring a Section 2 claim,⁹⁰ despite high levels of racially polarized voting in many jurisdictions.⁹¹ Minorities seeking representation will be disincentivized from building ties with residents of different racial communities.⁹² Such a development could perversely incentivize a zero-sum approach to addressing racial voting discrimination and discourage cross-racial coalition-building.⁹³

Eric McGhee, Chris Warshaw, and I wrote this column in today’s Washington Post on the evaporation of the U.S. House’s longstanding pro-Republican bias in the 2020s.

For more than two decades, the House was consistently biased in Republicans’ favor. Votes cast for GOP candidates translated into congressional seats more efficiently than did votes for Democrats. . . .

Now, that fixture of American politics is gone. In the 2022 and 2024 elections, according to standard measures of partisan bias, the House exhibited no pro-Republican lean at all. Of course, Republicans won narrow majorities in 2022 and 2024. But they did so because they won narrow pluralities of the total House vote. For the first time in a generation, both Republicans’ control of the chamber and their slim governing margins accurately reflected voters’ preferences. . . .

Thanks to this shift, legislative divisions over the next two years will mirror cleavages in the electorate, at least in partisan terms. And when it’s time to vote again, whichever party earns a plurality of the total votes cast in House races is likely to win the speaker’s gavel. Neither party should expect its share of House seats to be too inflated or deflated relative to its popular appeal. . . .

What spurred this change? Part of the story is a decline in extreme Republican gerrymandering. In 2012, six states’ congressional plans had pro-Republican efficiency gaps of two or more seats. This decade, only one state’s map (North Carolina’s for the 2024 election) was as tilted toward Republicans. . . .

At the same time, the 2020s feature more highly pro-Democratic plans. In 2012, no map had a pro-Democratic efficiency gap of at least two seats. This decade, Illinois’s Democratic gerrymandering boosted Democrats by 3.5 seats on average. California’s commission-drawn map netted them roughly 4.5 bonus seats, possibly because the spatial patterns of the state’s voters favor Democrats. . . .

The House’s reduced tilt also reflects the country’s changing political geography. For years, some have argued that Republicans “naturally” benefit from redistricting because Democrats squander too many votes in safe urban districts. In 2024, however, cities swung to the right as Republicans made large gains among young and minority voters. That meant Democrats won most urban districts by considerably tighter margins. Concurrently, rural and exurban areas backed Republicans to an even greater extent. Districts there are now about as blood-red — i.e., as inefficient — as their deep-blue counterparts in cities. . . .

With these scenarios on the horizon, today’s unbiased House shouldn’t be a pretext for putting off redistricting reform. The House isn’t balanced because most states have fair congressional plans; to the contrary, many states have unfair plans, but Democratic and Republican gerrymanders happen to offset one another almost perfectly. This equipoise is fortuitous, but it continues to leave many Americans poorly represented by their states’ congressional delegations. Redistricting abuses also remain rampant at the state and local levels. These legislatures’ biases can’t be balanced by maps elsewhere being tilted in the opposite direction.

The need to curb gerrymandering, then, is as urgent now as when it previously distorted the House as a whole.

Harvard Law School held a discussion between me and Ruth Greenwood about my new book, “Aligning Election Law.” Here are some excerpts from Harvard Law Today’s writeup about the event.

“The incredible evidence here … is that most voters are relatively moderate in their policy preferences,” he said. On the other hand, “Donors and spenders in the campaign finance world have extremely different views from the general public. They have sharply bi-modal policy preferences. Most donors are quite liberal or quite conservative, and there are very few moderate donors. And politicians’ voting records … turn out to be a perfect replica of the bi-modal distribution of donors.” Thus, it’s not simply a matter of the rich influencing the political agenda. . . .

That is among the issues that Stephanopoulos outlines in his new book “Aligning Election Law.” He discussed his findings at Langdell Library with Assistant Clinical Professor Ruth Greenwood, who directs the law school’s Election Law Clinic.

Alignment, Stephanopoulos explained, is the simple idea that the output of the government should correspond to what the people want the government to do. “This is a pretty intuitive value that lies at the core of many different conceptions of democracy,” he said. Alignment can be measured in political party affiliations, in representative stands that politicians take, and in the policies that are eventually enacted.

Yet there are significant areas in which the electorate’s wishes and the government’s output are greatly misaligned. One is the strong influence of donors and another involves gerrymandering —  something that he and Greenwood have done substantial work to combat.

“Partisan gerrymandering lets you take the same set of voters, with the same partisan and ideological preferences. You draw one district configuration instead of another, and all of a sudden you’ve dramatically altered the partisan makeup of the legislature.” This, he suggested, has an outsized effect on policy, since “Gerrymandering takes you from way too liberal outcomes if the Democrats gerrymander to way too conservative outcomes if the Republicans gerrymander. That influence, that delta, is an order of magnitude larger than you get with voting policies, for example.

“So, I think there’s one takeaway for current electoral rules, it’s that money and politics and partisan gerrymandering matter more than any other electoral rules today,” he said. For that reason, he described the current state of alignment in American politics as “pretty poor.” . . .

In many cases, he said, politicians simply get wrong information about public opinion. They “often misperceive what people want because they’re only hearing from the ideological fringes, the extremist loudmouth busybodies who approach members of the legislature. So more representative contact could help … Politicians often think that their constituents are much more left- or right-wing than they really are. One way to fix that might be for private actors to make available better data about public opinion.”

To that end, he and Greenwood have launched TrueViews (trueviews.org), which collects public opinion data on a variety of issues and filters them by area, allowing anyone to access how a particular state, city, or even school district stands on a particular topic. (It currently features data on gun control, environmental policies, criminal justice, and more.)

In a major decision today, a New York appellate court reversed a trial court decision striking down the New York Voting Rights Act on its face. The court held that the town of Newburgh wouldn’t necessarily be forced to violate the Equal Protection Clause by any remedy the town might be ordered to adopt. Accordingly, the town lacked the capacity to facially challenge the NYVRA. Harvard Law School’s Election Law Clinic is helping to litigate this case, and I argued the appeal in December. The case will now head to trial on plaintiffs’ vote dilution claims. Some excerpts from the decision are below:

For the reasons discussed below, it cannot be said as a matter of law on this record that compliance with the NYVRA would force the defendants to violate the Equal Protection Clause.

[R]ace-based districting is only one of the possible remedies under the NYVRA; the NYVRA also contemplates remedies that do not sort voters based on race, such as such as ranked-choice voting, cumulative voting, limited voting, and the elimination of staggered terms. . . .

Further, we conclude that the NYVRA need not contain the first Gingles precondition, that the “minority group . . . be sufficiently large and [geographically] compact to constitute a majority in a reasonably configured district” to survive a facial challenge to its constitutionality under the Equal Protection Clause. The United States Supreme Court has never said that the Gingles test was required by the constitution, as opposed to resulting from a statutory interpretation of section 2 of the FVRA. The only time the Fourteenth Amendment is mentioned in the majority opinion in Gingles is in the background section where the court noted that the plaintiffs’ lawsuit challenged the subject districts as violating the Fourteenth and Fifteenth Amendments in addition to violating section 2 of the FVRA. The reason that the United States Supreme Court included the first Gingles precondition was because of its conclusion that if the minority group were unable to demonstrate that it was sufficiently large and geographically compact to constitute a majority in a single-member district, “the multi-member form of the district [could not] be responsible for minority voters’ inability to elect its candidates” (id. at 50). Gingles was not contemplating influence districts or remedies such as ranked-choice voting, cumulative voting, limited voting, or the elimination of staggered terms. . . . Since the NYVRA specifically allows for remedies that might allow for minorities to elect their candidates of choice or influence the outcome of elections without their constituting a majority in a single-member district, it was rational for the New York Legislature to not include the first Gingles precondition as a precondition to liability under the NYVRA.

Further, while the text of the NYVRA is unlike the FVRA in that it does not require the plaintiff in every vote dilution case to show that “under the ‘totality of the circumstances’ . . . the political process is not ‘equally open’ to minority voters,” in order to obtain a remedy under the NYVRA, a plaintiff still must show that “vote dilution” has occurred, and that there is an alternative practice that would allow the minority group to “have equitable access to fully participate in the electoral process.” Thus, the NYVRA does not significantly differ from the FVRA in this respect.

Finally, even if it were unconstitutional to apply the NYVRA in situations where the Gingles test has not been satisfied, the NYVRA could still be constitutionally applied in situations where the Gingles test has been satisfied. All parties agree that the FVRA as interpreted by Gingles is constitutional (see Allen v Milligan, 599 US at 41). Here, the plaintiffs contend that the evidence they submitted in opposition to the defendants’ motion demonstrates that each element of the Gingles test has been satisfied.

I posted this paper introducing a new form of proportional representation that combines the key features of the two PR systems that are most commonly advocated in the American context. The paper is part of a Wisconsin Law Review symposium. Here’s the abstract:

American jurisdictions are considering switching to proportional representation (PR) in volumes unseen for a hundred years. But the forms of PR currently being debated have drawbacks. The most (domestically) prominent of these, proportional ranked-choice voting (P-RCV), is both vulnerable to vote leakage among parties and cognitively challenging for voters. Another salient system, open-list proportional representation (OLPR), risks underrepresenting minority voters. This Article therefore introduces a new form of PR—ranked-list proportional representation (RLPR)—that promises to alleviate these concerns. Under RLPR, voters first vote for a single party. They then rank only this party’s candidates. Voters’ party votes determine each party’s seat share. And voters’ candidate rankings establish which of each party’s candidates win its allotted seats. Like all forms of list PR, RLPR makes it impossible for votes to leak across party lines. RLPR is also cognitively simpler for voters because it asks them to rank only one party’s (not all parties’) candidates. And RLPR’s sequential reallocations of votes typically lead to proportional minority representation (both intraparty and overall). Accordingly, American jurisdictions should add RLPR to their menu of PR options. If they choose to adopt it, they should pair it with P-RCV in the primary election.

I wrote this column for the Washington Post on the surprising trend of depolarization in last month’s election. If it holds, this trend has enormous implications for American politics.

Here’s a shocker: One of the unnoticed themes of the recent election was depolarization. The electoral chasms between groups of voters shrank compared with four years earlier. This was true across several axes and is mostly attributable to traditional Democratic constituencies moving to the right. If these trends endure, they promise a new political era.

. . . This combination of minority voters shifting rightward and White voters staying put resulted in the lowest level of racially polarized voting in a generation. The Black-White gap in Trump support declined from 47 percentage points in 2020 to 40 points in 2024. The Latino-White gap fell from 20 points to 13 points.

. . . The gap between the youngest and the oldest voters’ choices therefore plummeted from 15 percentage points in 2020 to four points in 2024.

. . . Accordingly, after decades of divergence, urban and rural areas edged closer to each other politically. . . .

What explains this convergence? The superficial answer is that historically Democratic groups swervedto the right while long-standing Republican constituencies didn’t budge. Minority members, young people, city dwellers and women — they’ve all been Democratic stalwarts, and they allmoved toward Trump. The only major Democratic cohort that didn’t shift rightward was people with at least a college degree. Conversely, White, old, rural and male voters are pillars of the modern Republican coalition. Surprisingly, they mostly resisted the pro-Trump swing among the rest of the electorate. . . .

Yet depolarization could also benefit Democrats by facilitating the translation of their votes into political power. At the presidential level, the tipping-point state that gave Trump his electoral college majority in 2024 — Pennsylvania — was just 0.6 percentage points more Republican than the national popular vote. By comparison, the tipping-point state in 2020, Wisconsin, was 3.8 points more Republican than the country as a whole. . . .

Similarly, the House of Representatives is on track to be less skewed, in aggregate, than at any time since the early 1990s. A common measure of the House’s bias compares the election result in the median House district with the national popular vote. In the coming Congress, the median House district will have almost the same partisan slant — a slight Republican tilt — as the country as a whole. And again, some of the credit is due to depolarization. . . .

This Harvard Crimson story discusses the new TrueViews site that aims to improve representation by providing elected officials with more information about their constituents’ policy views.

Professors from Harvard and George Washington University launched a data visualization tool early last month to help legislators better assess local opinions on policies.

TrueViews — a website built in collaboration between Harvard Law School and the Bloomberg Center for Cities — displays a color-coded United States map containing detailed statistics of political perspectives on a variety of topics, including criminal justice, abortion and gun control.

To create the site, researchers relied on data from 18 national surveys conducted between 2009 through 2023. The site displays public viewpoints on 32 policy questions by zip code, city, county, district, and state.

Harvard Law School professor Nicholas O. Stephanopoulos said he hopes the tool will help bridge the gap between constituents’ desires and elected officials’ policy priorities.

“There’s a distressing pattern today where representation and policy is often quite distorted relative to what people want, and there’s some evidence that some of that distortion is just because policymakers don’t know what people think and want,” Stephanopoulos said.

Stephanopoulos added that, according to the data, the country is less polarized than the public often assumes.

“It was a pleasant surprise to see the variety and the complexity of public opinion, and to see that it doesn’t always boil down to the standard red-blue, or north-south, or city-country cleavages,” he said.